Cuts to State Courts Focus of Symposium

Monday, September 26, 2011

WASHINGTON — Salaries are being cut and positions folded—it’s a story heard a lot these days. But when the chair going empty is the judge’s or the clerk of court’s, justice suffers along with the economy.

“All of us must have and protect our right and our freedom to use courtrooms when we need to, ” said American Bar Association President Wm. T. (Bill) Robinson III September 23 in Lexington, Ky. “That courtroom must be open to protect families. That courtroom must be open to validate and protect contracts for business. That courtroom must be open to keep the wheels of justice turning. That courtroom must be open to defend our individual rights to prove again and again that we continue to be a free society. All of that takes more money … not less and less money for our courts.”

Robinson is in Lexington for a symposium, sponsored by the Kentucky Law Journal, the ABA and the National Center for State Courts, on court underfunding.

Over the last year the ABA, through its Task Force on Preservation of the Justice System, has documented the dire state of courts through public hearings that were held around the country. It found that civil cases were hit the hardest: child custody, divorces, business lawsuits and employee compensation matters have all been moved to the back burner in states across the nation as court budgets dwindle.

Nine state supreme court chief justices and Robinson analyzed the impact of the court underfunding crisis across the country.

“There is nothing more precious than our freedom and that comes from access to justice,” said Robinson.

The crisis has left justice stranded by closed courts, led to job losses and furloughs for court personnel; civil cases have been suspended and court personnel in many jurisdictions are scrambling for basic office supplies.

“We’ve all learned to be resourceful and live within our means, but state courts are running out of options,” said John D. Minton, chief justice of Kentucky during the opening session of the symposium, “Setting the Stage: the Promise of Justice.”

At the same session, Erwin Chemerinsky, dean of the University of California-Irvine School of Law said, “It’s easy to blame this on the recession, but I think there are underlying causes far deeper that explain the crisis in courts.”

“Judiciaries aren’t very powerful interest groups,” he said.

During the second program of day one of the symposium, Lisa Rickard—president of the Institute for Legal Reform, U.S. Chamber of Commerce—recommended judges talk to CEOs, and that courts show efficiency to get business interested in the court funding issue. She also advised judiciaries to create specialized courts; ease the process of discovery; and show businesses that, rather than just pouring money into the system, courts will also be more efficient.

“What business looks for is certainty, predictability and efficiency,” she said.

Since 95 percent of all cases in this country are filed in state courts, the funding for those judiciary systems is crucial.

“It can’t be that every time there is an economic crisis that funding for the courts goes down,” said Chemerinsky.

Chemerinsky also explained how the legislature is obligated to adequately fund the courts. “The legislature cannot deny funding for the courts to perform essential functions without violating separation of powers,” he said.

“This transcends the court. … It’s really about convincing people that we need to fund essential services,” Chemerinsky said.

While discussing ways for the courts to obtain adequate funding from legislators, Donna Melby—former president of the American Board of Trial Advocates—said that lawyers need to educate citizens, because people outside the legal profession need to realize the importance of court funding.

“We have to get outside our profession,” said Melby, “because we have been preaching to the choir.”

In Kentucky, the court funding situation is challenging as it is elsewhere. Fortunately, the funding for courts was restored this year after a 2010 budget slash. However, the courts continue to operate with $35 million less than they need to fund level services. The state has managed to deal with the cuts by freezing salaries, imposing staff layoffs and deferring filling judicial vacancies. It has also delayed filling vacancies in the clerks’ offices and in judicial support positions, while also reducing other operating expenses.

When ABA President Robinson took office last month, he vowed to do something about the court underfunding crisis. The symposium met to create and glean solutions to remedy the crisis.

“We must do everything in our power to adequately fund our courts and counter this fundamental threat to our constitutional democracy,” he said.

To date, at least six states close their courts one day a week because of inadequate funding. New Hampshire suspended all civil cases for one year to deal with overwhelming backlogs made worse by inadequate funding. In New York, a $178 million cut in the state court system almost immediately led to 500 people being laid off. Last year, 40 states slashed state court funding.

Robinson gave the keynote address this evening at the Lexington Convention Center. He was honored as a distinguished alumnus of the University of Kentucky; the Kentucky Law Journal’s 100th Anniversary was also celebrated.